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When is a Garment Design Copyrightable?

February 23, 2023

Can you copyright that new shoe or hoody design that you believe will change the fashion world forever? Likely yes, but it’s complicated.

Clothing and apparel have always been deemed “useful articles” because, by their very nature, they serve both a functional and aesthetic design purpose. Functional design features on clothing and apparel, such as “shape, style, cut, and dimensions” generally cannot be copyrighted. However, what about the design features on clothing and apparel that serve aesthetic design purposes?

For years, there was much dispute about whether such aesthetic design features on “useful articles” clothing and apparel could be copyrighted, given that the designs could not technically exist independently of the final product. The United States Supreme Court resolved this dispute though in Varsity Brands, Inc. v. Star Athletica, L.L.C., the landmark ruling on the copyrightability of clothing and apparel designs.

Varsity Brands, a manufacturer of cheerleading uniforms and accessories received copyrights for hundreds of cheerleading uniform designs with the US Copyright Office that contained general design elements such as stripes, chevrons, zig-zags, and color blocks. Later, Varsity sued its competitor Star Athletica for copyright infringement for selling similar, but not identical, cheerleading uniforms at a lower price. In response to the lawsuit, Star Athletica argued that Varsity Brands’ copyright claims should be dismissed because the uniform designs were not copyrightable in the first place – namely because the designs were of the “useful articles” (the cheerleading uniforms).

The Supreme Court disagreed, however, ruling that the aesthetic design elements on the uniforms could be imagined as independent designs (such as the two-dimensional drawings that Varsity submitted to the US Copyright Office) that did not serve a functional purpose. In doing so, the Court established the following two-part separability test to determine whether a garment design element can be copyrighted: (1) determine whether the design itself can be imagined as separate from the garment and (2) if so, whether the design would then qualify for copyright protection (i.e. an original work with sufficient creativity).

Since its ruling, many prominent fashion and apparel cases have relied upon Varsity Brands, Inc. v. Star Athletica, L.L.C. to determine whether copyright protection exists over clothing and accessory designs, including:

  • Designers Guild Limited v. Russell & Harrison Limited: a dispute over the copyright protection of fabric designs wherein the Court ultimately determined that the fabric designs were eligible for copyright protection; and
  • Xcel Brands, Inc. v. Rounder Girls, LLC: where the court found that jewelry designs were eligible for copyright protection after applying the Varsity Brands, Inc. v. Star Athletica, L.L.C. two-part test.

Now more than ever is the time for fashion and apparel companies to seek copyright protection for their designs to protect themselves from counterfeit goods and to eliminate unfair competition from the marketplace. Those who willfully infringe upon copyrighted work can be held liable for statutory damages of $150,000 per copyrighted work.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice. 

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